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    Title:

    Outside Employment and Consulting

    Publication date:

    9/9/2019

    Effective date:

    9/9/2019

    BRIEF

    Policy Summary

    Employees may engage in compensated outside consulting and employment as long as such activities do not interfere with performance of their Lawrence Berkeley National Laboratory duties, create a real or apparent conflict of interest, subject the Department of Energy (DOE), the University of California, or the Laboratory to public criticism or embarrassment, or violate other DOE requirements. Prior institutional review and approval are required for compensated consulting and employment activities related to the employee's Laboratory work. All outside employment and consulting activities must be conducted without the use of Laboratory time, supplies, equipment, or facilities.

    Who Should Read This Policy

    This policy applies to all employees, including those working part time and variable time, and those who hold faculty appointments with a University of California campus.

    To Read the Full Policy, Go To:

    The policy tab on this wiki page

    Contact Information

    Conflict of Interest Office
    COI@lbl.gov


    Title:

    Outside Employment and Consulting

    Publication date:

    9/9/2019

    Effective date:

    9/9/2019

    POLICY

    A. Purpose

    This policy establishes review principles and processes for employee participation in consulting, employment, and other compensated professional activities outside of Lawrence Berkeley National Laboratory (Berkeley Lab).

    B. Persons Affected

    This policy applies to all employees, including employees holding joint University of California (UC) faculty appointments and retirees, regardless of percent time employed or worked, or duration of employment.

    C. Exceptions

    This policy does not apply to honoraria given for one-time lectures or presentations (given to a broad audience) as long as the source of the honorarium is not DOE or UC. Institutional approval is not required for reviews performed for a U.S. public agency, nor for expert witness testimony. All such activities should be approved by the employee's supervisor.
    Review and approval of uncompensated outside business and professional activities is at the discretion of the division. Any written agreement offered in connection with such uncompensated activities must be submitted to the Innovation and Partnerships Office for review prior to signature.

    D. Policy Statement

    1. General Policy
      1. Employees are required to obtain institutional approval prior to engaging in outside business and professional activities, such as consulting and service on science advisory boards or boards of directors, or employment. See Section D.2 and Section D.3 of this policy.
      2. Employees may engage in outside business and professional activities, such as consulting and service on science advisory boards or boards of directors, outside Berkeley Lab hours and away from the Laboratory as long as such activities do not interfere with performance of their Laboratory duties, create a real or apparent conflict of interest, or subject DOE or Berkeley Lab to potential or actual public criticism or embarrassment. As set forth below, Laboratory management review and approval are required for any of the following outside professional activities:
        1. Work with the potential to interfere with Berkeley Lab employment obligations.
        2. Work of any kind for a scientific or technical organization.
        3. Work involving an entity with whom the Laboratory does business or has the potential to do business, e.g., licensing, sponsored research, and subcontracts.
        4. Work paid by federal funds or by a unit of the University of California.
        5. Consulting in a subject area related to the employee's Laboratory work.
      3. Employees are prohibited from engaging or participating in outside activities that are funded, sponsored, or supported by a foreign government talent recruitment program of a foreign country of risk.
      4. If the outside activity is not in one of the categories listed above and is obviously unrelated to the Laboratory's interests, it does not normally need to be reported or approved. Examples include an outside job or business interest in ranching; retail sales; and music, art, or residential real-estate sales. Employees who are undecided as to whether their outside activity must be disclosed in accordance with this policy may refer the question to the Conflict of Interest Office.
      5. All outside business and outside professional activities must be conducted without the use of Berkeley Lab supplies, equipment, or facilities. In general, employees are prohibited from engaging in compensated outside employment, activity, or consulting if that activity is sponsored or funded by any Berkeley Lab or University of California entity or through any Berkeley Lab or University of California contract. No amount of time due to the Laboratory may be devoted to private purposes, and no outside business or professional activity may interfere with the performance of Laboratory duties. The policy in this section is based on federal and state laws and regulations, the UC-DOE Prime Contract for management of Berkeley Lab, and University policy. Failure to comply with this policy, including the requirement to obtain prior approval before engaging in compensated outside professional activity, may result in disciplinary action, including suspension without pay and/or termination from employment, in accordance with the Laboratory's Corrective Action and Discipline policy.
      6. Policy concerning ownership or management interest in commercial entities with potential economic or technology connections to the Laboratory is covered in the RPM section on Employee Owned or Managed Business.
    2. Review-and-Approval Principles and Time Limits
      1. Principles
        1. The following considerations are made in determining whether a real or apparent conflict of interest exists:
          1. Incompatibility between regular duties and private interests
            1. Employee outside business or professional activities must not be in competition with current or proposed Laboratory projects.
            2. Employee outside business or professional activities must not result in unfair competitive advantage to the outside business.
            3. Employee outside business or professional activities must not materially affect the Laboratory's dealings with the outside business or substantially affect the environment of the economic/technology business sector in which the employee or a near relative has a financial interest as defined by the University of California Conflict of Interest Code.
            4. Employee outside business or professional activities must not limit the employee's responsibility to fully and promptly report significant Laboratory research and development information to DOE.
          2. Protection of privileged and proprietary information. An employee engaged in outside professional activities shall protect information, skills, or knowledge that is material to current or proposed Laboratory research or development work, and that is proprietary to the Laboratory and not yet in the public domain.
          3. Prevention of unauthorized transfer of scientific and technical information to foreign government entities.
      2. Time Limits. There is no specific time limit for an employee's outside business or professional activities; however, approval is required on an annual basis and whenever there is a change in the scope or terms of work. See Section D.3 below for the review process.
      3. Other Review Factors. In approving any individual activity, the total amount of outside professional activities may be considered.
    3. Review and Approval Process for Compensated Outside Business and Professional Activities. Compensated outside business or professional activities described in Section D.1.b.i–v require prior review and approval by Berkeley Lab management and institutional officials. Use the Request for Approval of Compensated Outside Professional Activity process to obtain required approvals. In accordance with Contract provisions, the Laboratory may provide the DOE Berkeley Site Office (BSO), and certain external funding sources, with information and/or copies of documents pertaining to compensated outside business or professional activities.
    4. Other Payments from Outside Organizations. Generally, employees are permitted to accept honoraria for lectures or presentations from sources other than the DOE or the University of California (including flow-through funds). However, the California Political Reform Act imposes prohibitions and/or limits on honoraria for employees in positions designated by the University of California Conflict of Interest Code. See the RPM policy on Designated Officials for details. Honorarium payments for one-time lectures do not require Laboratory approval under the Compensated Outside Professional Activity process; however, such income may trigger disqualification requirements. Any written agreement offered in connection with such one-time lectures must be submitted to the Technology Transfer and Intellectual Property Management office for review prior to signature.
    5. Teaching and Other Services for the University of California. Refer to the Teaching or Other Services for the University of California policy for information regarding allowable additional service and compensation from UC.
    6. Review of External Technical Proposals Involving Laboratory Inventions. A Laboratory employee who is invited by DOE or any third party to review a technical proposal that describes (1) his/her own invention/s or (2) any other Laboratory invention that the employee is aware of through, for example, previous knowledge of the invention or background intellectual property, will so inform the Intellectual Property Management Office (ipo@lbl.gov), which will evaluate the information and notify the BSO if the subject matter of the proposal involves an elected or waived subject invention in which the Laboratory holds or intends to elect title.
    7. Policy on Outside Professional Activities for the University Senior Management Group. Outside professional activities of Laboratory employees who are members of the UC Senior Management Group (SMG) are subject to certain additional special provisions. Consult your division's Human Resources Center for complete information concerning the necessary approval and reporting requirements pertaining to members of the SMG.
    8. Written Agreements. The text of any proposed consulting or employment agreement must be reviewed and approved by the Innovation and Partnerships Office before execution of the agreement by the employee. When a consulting or employment agreement containing a claim for invention and patent rights is offered to an employee, the outside organization must be advised, under the terms of the UC-DOE Prime Contract for Laboratory management, that the agreement must include the following or equivalent language to obtain Laboratory approval:
      1. "It is recognized that (1) Consultant is an employee of the University of California engaged in certain work conducted by the University at the Lawrence Berkeley National Laboratory under Contract ________________________ with the United States Department of Energy (DOE) and (2) the University has rights to patents and other intellectual property arising from Consultant's services for that work. This consulting agreement is subject to those rights notwithstanding any intellectual property obligations to contrary in this agreement. Whenever any invention or discovery is solely or jointly made, conceived, or developed by Consultant under the consulting agreement, the Company must promptly furnish the University and DOE with sufficient information to timely determine whether the invention or discovery is within the purview of the patent agreement executed by Consultant with the University."
    9. Questions regarding inventions and patent articles in a proposed consulting agreement should be referred to the Intellectual Property Office.

    E. Roles and Responsibilities

    Managers, supervisors, and employees have the responsibility to adhere to the provisions of this policy.

    F. Definitions/Acronyms

    Term

    Definition

    Foreign Country of Risk

    Any foreign country determined to be of risk by the Office of Science in consultation with the Under Secretary for Science; the Under Secretary of Energy; the Under Secretary for Nuclear Security; and the Office of Intelligence and Counterintelligence

    Foreign Government Talent Recruitment Program

    In general, such programs include any foreign-state-sponsored attempt to acquire U.S. scientific-funded research or technology through foreign government-run or funded recruitment programs that target scientists, engineers, academics, researchers, and entrepreneurs of all nationalities working or educated in the United States. These recruitment programs are often part of broader whole-of-government strategies to reduce costs associated with basic research while focusing investment on military development or dominance in emerging technology sectors. Distinguishing features of a foreign government talent recruitment program covered by this Order include:

    • Compensation: Compensation provided by the foreign state to the targeted individual in exchange for the individual transferring their knowledge and expertise to the foreign country. The compensation can take several forms, such as cash, research funding, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration.
    • Recruitment: Recruitment in this context refers to the foreign-state-sponsor's active engagement in attracting the targeted individual to join the foreign-sponsored program and transfer their knowledge and expertise to the foreign state. The targeted individual may be employed and located in the U.S. or in the foreign state. Recruitment would not necessarily include any invitation for engagement extended by the foreign state, for example, an invitation to attend or present work at an international conference.
    • Incentives: Many, but not all, programs aim to incentivize the targeted individual to physically relocate to the foreign state. Of particular concern are those programs that allow for continued employment at U.S. research facilities or receipt of DOE research funds while concurrently receiving compensation from the foreign state.

    G. Recordkeeping Requirements

    Records will be kept for at least three years after approval for the activity has expired, or for at least three years after a request has been denied.

    H. Implementing Documents

    I. Contact Information

    Conflice of Interest Office
    COI@lbl.gov

    J. Revision History

    Date

    Revision

    By Whom

    Revision Description

    Section(s) Affected

    Change Type

    1/2/2012

    0

    Stoufer

    Rewrite for wiki (brief)

    All

    Minor

    2/22/2013

    1

    Stoufer

    Rewrite for wiki (policy)

    All

    Minor

    9/8/2016

    1.1

    Stoufer

    Periodic update

    All

    Minor

    1/27/2017

    1.2

    Stoufer

    Clarification

    D.1.d

    Minor

    8/15/2019

    1.3

    Stoufer

    Addition of prohibitions under DOE O 486.1

    All

    Major

    DOCUMENT INFORMATION

    Title:

    Outside Employment and Consulting

    Document number

    05.01.001.000

    Revision number

    1.3

    Publication date:

    9/9/2019

    Effective date:

    9/9/2019

    Next review date:

    9/9/2022

    Policy Area:

    Outside Business and Employment

    RPM Section (home)

    Conflict of Interest

    RPM Section (cross-reference)

    Section 10.02

    Functional Division

    Directorate

    Prior reference information (optional)

    Section 10.02

    Source Requirements Documents

    • Contract 31, Clause I.78 Sec. 970.0371-6, Incompatibility between regular duties and private interests
    • Contract 31, Clause I.78 Sec. 970.0371-7, Outside employment of contractor employees
    • Contract 31, Clause I.78 Sec. 970.0371-8, Employee disclosure concerning other employment services
    • DOE Order 486.1, Department of Energy Foreign Government Talent Recruitment Programs

    Implementing Documents


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